Clarity On The Supreme Court Case Of Whether Same-Sex Marriage Is A Constitutional Right
by Larry Perrault on May 4, 2015 at 2:51 PM
I listened to last week’s oral arguments before The Supreme Court about a constitutional mandate of same-sex marriage, and I was STUNNED. Much was discussed on both sides about the social implications and social impositions of declaring same-sex marriage a constitutional mandate under Equal Protection in the 14th Amendment. I believe both are enormous and socially foolish. Others think they are enormous in a positive way. If we believe that it was an assertion of objective standards of justice, and I do, does The 14th Amendment mandate an institution of gay marriage, and our society and nearly all human societies of history have been forever out of line, just like society and law and even Supreme Court decisions were out of line with constitutional principle during slavery and publicly imposed segregation?
But neither of our opinions should matter in this case. NONE of these exalted legal minds distilled out the only relevant question of the case from the surrounding sentiment. The question at issue is simple: IS same-sex marriage a constitutional right. If it is or isn’t, nothing else matters to this case. As I said, I think the social costs in litigation and accommodation would be enormous, not to mention the implications for children and the public defiance of family and community values. But if the society is in constitutional disorder and it’s properly a constitutional right, the cost must be born.
But no one answers this: How can a state-defined and qualified LICENSE be a constitutional right? The idea is absurd: Life, Liberty, Property and state licenses the way I wish they were. All licenses are accorded qualifications and discriminate against people who do not meet them. In fact, discrimination is the very nature of a license. In this case, the advocates for a constitutional mandate propose that The Supreme Court IMPOSE a change in the qualifications for marriage licenses. That is even more audacious presumption than it is absurdity. The Supreme Court or any federal agency have no jurisdiction whatsoever over marriage or a state definition of a license.
I have been watching and reading a lot of material and its very disconcerting how muddled the discussion is even among supposedly lucid legal thinkers and established broadcasters and publishers. This article at Bloomberg from an academic appears to be utterly blind to the true intentions and implications of Ted Cruz’s actions that she is implying are incongruous. They aren’t. I have my thoughts about the socially seismic consequences of an asserted constitutional right to gay marriage. Just think of the avalanche of litigation and accommodation costs over public documentation; textbooks documents and forms; media presentations too. And soon enough, there will be sanctions against entities that do not respect and comply with this "constitutional right." When the counsel in favor of gay marriage being a constitutional right said people would not be forced to perform same-sex marriages, Justice Scalia asked, “If it’s a constitutional right, how can they deny it?” Others think feelings should override all that. But all that should matter is whether same-sex marriage is a constitutional right. That's what's so troubling. I'm not a lawyer. But I think I have a pretty good sense of logic, which seems confirmed to me by my perception that for so many it is horrid. Perhaps that’s to be expected when the objective is not clarity as much as something else. Call me with my priorities, a freak.
Same-sex marriage is not a constitutional right. Of course, The Constitution says nothing about marriage and nothing about licenses. The founders would be incredulous at this question. The only way it could in any respect be a constitutional matter is if as they argue that under The 14th Amendment, there is unequal treatment for some people; the state license requirements were different for some than others. But they are not. There is only one set of qualifications for everyone. And that is the other side's problem: they want to change the requirements of a state defined and issued license. 1) How can The U.S. Supreme Court constitutionally re-design the qualifications for a state license? And 2) How can a state license with its qualifications be a constitutional right in the first place? There are plenty of licenses that we are all unqualified for; even more for me as a disabled person.
This idea is not merely incorrect. It is absurd and audacious, as I said. And the U.S. Supreme Court trifling with state license qualifications is petty. Irrespective of its wisdom or folly, same-sex marriage CAN be legal, IF a state legislature qualifies it as such. Or, some states can have a poplar referendum.